Custody and Visitation

At times, a court must delicately balance the best interests of the children and their parents with contract rights, religious matters, ethical and social values, and constitutional principles and individual rights. That balance is remarkably reflected in the August 16, 2017 decision in Weisberger v. Weisberger, of the Appellate Division, Second Department. There, the Court concluded:

Courts do not always have the perfect solution for all of the complexities and contradictions that life may bring — the parties must forge a way forward as parents despite their differences.

The Weisbergers were married in 2002. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced in 2009. The judgment incorporated a stipulation of settlement under which the parties agreed to joint legal custody of the two daughters and one son of the marriage, with the mother having primary residential custody. The father would be with the children for a two-hour period once per week after school (to be increased to twice per week for the son when he turned eight years old, for the purpose of religious study). The father would also have overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays.

Central to the issues raised on appeal, the stipulation contained the following religious upbringing clause:

“Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”

In 2012, more than three years after the divorce, at which time the children were nine, seven (the son), and five years old, respectively, the father moved (1) for sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health; (2) limiting the mother to supervised therapeutic visitation with the children; and (3) to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and to require the mother, herself, to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.

Dawn and Michael M. were married in 1994. After unsuccessful attempts to have a child, the couple attempted artificially insemination. Those efforts also failed.

In 2001, the wife met Audria and they became close friends. Audria and her boyfriend moved into an apartment downstairs from Dawn and Michael. When Audria’s boyfriend moved out, Audria moved upstairs. In 2004, the wife, husband and Audria began to engage in intimate relations.

As time went on, Audria, Dawn and Michael began to consider themselves a “family” and decided to have a child together. After the fertility doctor refused to artificially inseminate Audria because she was not married to Michael, the trio decided to conceive a child naturally by Michael and Audria engaging in unprotected sexual relations, and then, to all raise the child together as parents.

A son, J.M., was born to Audria in January, 2007. For more than 18 months, the three “parents” continued to live together. The child was taught that he had two mothers. When the relationship between the husband and the wife became strained, Audria and the wife moved out of the marital residence with the child.

Absent agreement of both parents, neither parent sharing joint legal custody nay cause or allow the children to receive any religious sacrament or education. So held Supreme Court Nassau County Justice Jeffrey A. Goodstein in his January 13, 2017 decision in DK v. AK.

The parties had two children together (currently ages 6 and 5). The parties were divorced in 2016 by a judgment which incorporated, but did not merge, the terms of their 2015 Stipulation of Settlement. Pursuant to the Stipulation, the parties shared joint legal custody of the children, with the mother having residential custody. Here, the father had brought this post-judgment motion for an order prohibiting the mother from causing or allowing the children to be baptized, or to receive any religious sacrament, or a religious education in any faith other than Judaism, without his written consent.

The father argued that there had been no issue with regard to the parties’ joint custodial relationship until the mother’s decision to baptize the children. The father further argued that the children were raised in the Jewish faith, as was allegedly agreed upon by the parties prior to their engagement. The mother acknowledged that the parties’ son had a traditional Bris, performed by a Mohel (performer of ritual circumcisions). The mother also acknowledged that the parties had a naming ceremony for their daughter although she contended that it was the paternal grandfather who wanted the baby naming and scheduled it, so she took over planning it.

The father further alleged that prior to their separation, the parties “actively” raised the children in the Jewish faith by celebrating the Jewish holidays. He contended that the children now accompany him to synagogue when he attends. Further, he set forth that a few months ago, the children started attending Hebrew school, with the mother’s consent.

The parties recently attended a mediation session when the mother wanted to bring the children to Catholic events. As reported by the parties, the mediator took the position that the children could be raised as both Jewish and Catholic, to which the father strongly disagreed. Shortly after the mediation session, the mother notified the father of her intent to baptize the children and invited him to attend the ceremony. The father further argued that a baptism is tantamount to changing the children’s religion without his consent.

For the second time this month, the Second Department prevented a wife from relocating with the children “locally” when the move would have limited the husband’s substantial involvement in the children’s daily lives. In its January 18, 2017 decision in Lipari v. Lipari, the appellate court affirmed the prohibition of a mother’s proposed relocation from Valley Cottage, in Rockland County, to Rye, in Westchester County, a distance of 17 miles. Only a week earlier, in DeFilippis v. DeFilippis, the Second Department prevented a wife from relocating from Floral Park to East Hampton [last week’s blog post].

In Lipari, under the parties’ divorce settlement the parties shared joint legal custody of their two children, with the mother having primary residential custody. The father had overnight visitation on alternating weekends and certain overnight visitation with the children during each week and during certain school breaks and holidays. With the mother remaining in the Valley Cottage marital residence, the father rented a two-bedroom condominium approximately five minutes away.

In its January 11, 2017 decision in DeFilippis v. DeFilippis, the Appellate Division, Second Department, prevented a wife from relocating with the children from Floral Park to East Hampton, a move that would have curtailed the husband’s involvement in the children’s daily lives, school, and extracurricular activities.

The wife commenced this action for divorce. While the action was pending, the wife sought to relocate. The wife claimed that the move would enhance the children’s lives economically, emotionally, and educationally.

The husband opposed the relocation, contending that if the children moved to East Hampton he would be unable to remain involved in their daily lives, school, or extracurricular activities, as he would see them only on the weekends.

Nassau County Supreme Court Justice Hope Schwartz Zimmerman granted the wife’s relocation motion, and the husband appealed. The Second Department reversed (the appellate court had stayed the relocation order pending the appeal).

The parties, who were never married, have two children together, the younger of whom is now 17 years old. The parents have been litigating custody and visitation issues for almost the entire lives of their children.

In its December 28, 2016 decision in Matter of Sullivan v. Plotnick, the Appellate Division, Second Department, addressed a family’s relationships, concluding (?) more than a decade of litigation. By consent orders in 2004 and 2005, the mother had physical custody of the children. In 2007, the mother petitioned to modify the earlier-agreed visitation schedule. Without a hearing., the Family Court granted the father’s motion to dismiss the mother’s petition. On a prior appeal, the Second Department reversed that order and remitted the matter for a hearing. In 2010, the father filed a petition to modify the custody and visitation orders so as to award him sole custody of the children, alleging that the mother interfered with his parenting time.

In July 2010, while these proceedings were pending, the children’s paternal uncle contacted the children and revealed that the father had been previously married, and that they had two older siblings. The children were upset that the father had withheld this information and refused to visit or communicate with the father.

In an attempt to rehabilitate the relationship between the father and the children, in 2010 the Family Court directed therapeutic visitation. The father subsequently filed two motions alleging that the mother had violated that direction. He also filed petitions to vacate a 2007 support order, and sought sole physical and legal custody on the basis of the mother’s alienation. After a hearing, by order dated September 6, 2011, the Family Court found that the mother willfully violated the orders directing therapeutic visitation.

In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

awarded the plaintiff custody of the parties’ child;

directed the defendant to pay child support in the sum of $293.20 per month;

awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and

awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

No one is more affected by custody determinations than the children. On the other hand, the courts strain to prevent children from having to testify in front of their parents.

In Matter of John V. v. Sarah W., the Appellate Division, Third Department, in its October 20, 2016 affirmed a change of physical custody to the father. Doing so, however, the court noted that it had been improper to allow a child of 12 to testify in front of the parents’ lawyers in the absence of the parents.

In 2009, the parents had agreed to joint legal custody of their then seven-year old son, with primary physical custody to the mother and parenting time to the father. In July 2014, after the child reported to the father that the mother’s live-in fiancé “ha[d] been hitting” him, the father commenced this proceeding seeking primary physical custody of the child. Following a fact-finding hearing, which included testimony given by the child outside the presence of the parties but in the presence of counsel, Broome County Family Court Judge Rita Connerton modified the prior order of custody by awarding primary physical custody to the father and reasonable parenting time to the mother. The mother appealed and the Third Department affirmed.

On August 30th, the state’s highest court overruled its prior holdings and expanded the definition of parent to grant a standing to seek custody to a domestic partner who agreed with the biological parent to the conception of a child and the raising of the child together. That decision in Matter of Brooke S.B. v Elizabeth A.C.C.was quickly followed by the decision of the Appellate Division, Second Department inMatter of Frank G. v Renee P.-F.

In the September 6th decision of the Second Department, Joseph and Frank were domestic partners who lived together for some five years. Together they asked Joseph’s sister, Renee, to act as a surrogate and give birth to the child resulting from Renee’s being impregnated with Frank’s sperm. The surrogacy contract contemplated that Renee would surrender her parental rights in order for Joseph to adopt the child. The understanding contemplated that Renee would remain a part of the child’s life.

Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?

Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.

Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.

About the Practice

Mr. Cahn’s practice is concentrated in the areas of family and commercial “divorce” and estate litigation, arbitration, lawyer-assisted mediation and Collaborative Law.

As to family law matters, the practice includes divorces, themselves, as well as custody and visitation, child and spousal support, and post-divorce matters, and domestic violence and family offense proceedings, in both the Supreme and Family Courts.